Doe v. Reivitz

HARLINGTON WOOD, JR., Circuit Judge,

dissenting.

I must respectfully dissent from the majority’s opinion which is understandably concerned with the impact of this legislation on the innocent children of illegal aliens. If, however, this statutory scheme as it has been congressionally constructed is perceived by the majority to be misguided then the arguments should be addressed to the Congress. We should not amend the acts by persuading ourselves that we know *1452 better than does the Congress what should be done about the children.

The statutory scheme we seek to interpret is not complex and clearly evidences understandable and legitimate purposes. It is designed to discourage illegal aliens coming here whether it be to seek employment or for some other reason. It is an attempt to reserve job training and jobs for our own citizens, lawful permanent residents, and color-of-law aliens. Those properly employed here would otherwise be required to support the families of unemployable illegal aliens. There is, on the other hand, an obvious effort to reduce welfare dependency by motivating all wage earners entitled and able to work to support their own families. We need only to examine the broad outlines of the implicated programs and legislation to discern their meaning and purposes.

The Aid to Families with Dependent Children (AFDC) program was authorized under the Social Security Act 1 in a cooperative effort with the states to provide financial assistance to certain needy families with dependent children, and to encourage the older members of the family to support themselves and their children. AFDC recipients are required to register in the work incentive program which encompasses training, employment and other employment-related activities. 2 For a child to be considered dependent and eligible, the child ordinarily must have been deprived of a parent either by death, continued absence or mental incapacity. 3 In 1981 Congress added a provision that removed any doubt about the eligibility of illegal aliens under the act by restricting these welfare provisions for the benefit of citizens and aliens lawfully residing here. 4 Illegal aliens are not eligible.

Another related program was temporarily initiated by Congress in 1961 labeled the Unemployed Parents Program (AFDC-UP). 5 This relaxed the eligibility requirement that a dependent child must have suffered the loss of one parent, and made eligible those children who live with both parents provided the principal wage earner is unemployed. This program emphasized the use of state job placement services. In 1967 Congress made this AFDC-UP program permanent and added WIN, a work incentive program. WIN required registration and participation by all AFDC recipients. In 1981 Congress, perceiving the necessity to apply more work pressure, provided that the entire family be disqualified for AFDC-UP benefits if the family principal wage earner did not register under WIN for work training and placement. The principal family wage earner among other things cannot refuse a bona fide offer of employment. 6

There is a significant difference between the AFDC program and the AFDC-UP program. Under AFDC if the wage earner does not participate in WIN his welfare share is deducted, but the family continues to receive its share. However, under AFDC-UP if the wage earner does not register and participate in WIN the entire family becomes ineligible for benefits. 7 Registration for WIN is a major prerequisite for benefits, but a person cannot register for WIN unless that person qualifies for AFDC. Since illegal aliens are not eligible for AFDC and thus cannot participate in WIN, the illegal alien and his entire family are excluded from the AFDC-UP program. The illegal alien’s family is treated the same as a citizen’s family should the citizen wage earner prefer to avoid WIN and labor for any reason, as some do.

A review of those welfare programs seems clearly to leave illegal aliens on their *1453 own. However, if there be any doubt, Congress passed the Immigration Reform and Control Act of 1986 (IRCA) which made it illegal, among other things, to knowingly hire illegal aliens. 8 Included was a requirement that federal-state public assistance programs, including AFDC, must condition eligibility on citizenship verification or lawful immigration status. Civil penalties and other remedies are authorized for employers who violate the illegal alien hiring prohibition.

This mere brief review of the pertinent legislation and its plain meaning requires nothing more to justify the Secretary’s enforcement policies. I see no need to belabor it further unless we are to abandon the long-established customary standards for statutory construction. “If the plain language of the statute is clear, we do not look beyond those words to interpret the statute.” Kelly v. Wauconda Park District, 801 F.2d 269, 270 (7th Cir.1986), cert. denied, —U.S.-, 107 S.Ct. 1592 , 94 L.Ed.2d 781 (1987). “It is well established that the plain language of a statute is important, and often the best, evidence of its meaning.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 , 100 S.Ct. 2051, 2056 , 64 L.Ed.2d 766 (1980) (“[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”). It is not for us to search for a result we may perceive as judges to be more desirable than what Congress provided, even when children are involved. The oral arguments we hear in court are not equivalent to congressional hearings when Congress is considering legislation.

Justice Stevens writing for a unanimous court in Mathews v. Diaz, 426 U.S. 67 , 96 S.Ct. 1883 , 48 L.Ed.2d 478 (1976), a case in which aliens challenged certain eligibility requirements for participation in a federal medicare insurance program, noted that even if the requirements to which the aliens objected were eliminated, “surely Congress would at least require that the alien’s entry be lawful.” Id. at 82 , 96 S.Ct. at 1893 . The Supreme Court recognized the broad powers of Congress over naturalization and immigration. This present case is concerned with that power which permits Congress to make rules which perhaps would be unacceptable if applied to our own citizens. Id. at 80 , 96 S.Ct. at 1891 .

The majority does not reach the constitutional issue as it resolves the case by statutory interpretation. Nor do I see the need to reach the constitutional issue as I also believe the question in this case should and can be resolved merely by reading the statutes. If we were to reach the constitutional issue, however, Justice Stevens in Mathews has already settled that issue for us: “Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Id. at 80 (emphasis in original).

Congress may provide federal aid for the needy children of unemployed illegal aliens if it desires, and that may be a worthy humanitarian goal, but it has not done so with this legislation. I would reverse the judgment of the district court.

. 42 U.S.C. § 601 et seq.

. 42 U.S.C. § 602 (a)(19)(A). There are certain exemptions which are not pertinent to this case.

. 42 U.S.C. § 606 (a)(1).

. 42 U.S.C. § 602 (a)(33).

. 42 U.S.C. § 607 .

. 42 U.S.C. § 607 (b)(1). The principal wage earner also must not refuse unemployment compensation or be unemployed because of a labor dispute or strike. 42 U.S.C. § 607 (b)(2)(C)(ii); 45 C.F.R. § 233.106 (1986).

. 42 U.S.C. § 602 (a)(19)(F); 42 U.S.C. § 607 (b)(2)(C)(i).

. See IRCA, Pub.L. No. 99-603, § 101 (a)(1), 100 Stat. 3341 -3 to -36.